Texas Department of Public Safety and Steven McCraw in His Official Capacity as Director of the Texas Department of Public Safety v. Maria Luisa Mejia Sunuc, Individually and on Behalf of the Estate of Marcos Antonio Castro Estrada, and as Next Friend to L.M. and H.M., Minors ( 2022 )

NUMBER 13-19-00443-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY
AND STEVEN MCCRAW IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE TEXAS
DEPARTMENT OF PUBLIC SAFETY, Appellants,
v.
MARIA LUISA MEJIA SUNUC, INDIVIDUALLY
AND ON BEHALF OF THE ESTATE OF MARCOS
ANTONIO CASTRO ESTRADA, AND AS NEXT
FRIEND TO L.M. AND H.M., MINORS, ET AL., Appellees.
On appeal from the 389th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellees, Maria Luisa Mejia Sunuc, individually, on behalf of the estate of Marcos
Estrada, and as next friend to L.M. and H.M., minors, and Maria Maura Espital Yucute,
as next friend to C.C.E., E.C.E., and E.W.C.E., minors, filed suit alleging various claims
against appellants, the Texas Department of Public Safety (DPS) and Steven McCraw in
his official capacity as Director of DPS, related to the shooting deaths of Marcos Estrada
and Leonardo Coj Cumar during a police pursuit. Appellants seek interlocutory review of
the denial of their motion for summary judgment asserting sovereign immunity from these
claims. Because we determine that (1) the motion for summary judgment constitutes a
motion to reconsider appellants’ previously filed plea to the jurisdiction, and (2) appellants
failed to timely invoke our interlocutory jurisdiction to review the trial court’s denial of that
plea, we dismiss this appeal for want of jurisdiction.
I. BACKGROUND
On October 25, 2012, a DPS helicopter joined an ongoing police pursuit of a
vehicle traveling on a rural road near the Texas, Mexico border. It is undisputed that the
troopers in the helicopter, Tactical Flight Officer Miguel Avila, pilot Lieutenant Johnny
Prince, and co-pilot Captain Holland, believed that the tarp covering the bed of the truck
was concealing drugs—not people. Acting under DPS’s then-policy permitting an airborne
use of deadly force on a fleeing vehicle, Trooper Avila attempted to disable the truck by
firing at the vehicle’s tires with a high-powered rifle. Nineteen rounds later, the truck was
disabled; however, it was then discovered that the vehicle was transporting
undocumented immigrants, not drugs, and that several of Trooper Avila’s errant shots
had unintentionally hit and killed Marcos Estrada and Leonardo Coj Cumar as they lay
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underneath the tarp in the bed of the truck.
Appellees filed suit for wrongful death, alleging various theories of negligence
against DPS based on improper use of the helicopter and rifle. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.021(2). They also sought a declaratory judgment that DPS’s use-
of-force policy violated Estrada and Cumar’s rights under the Texas and United States
Constitutions or alternatively, that Director McCraw’s implementation or retention of the
policy was ultra vires.
Approximately seven months later, appellants filed a plea to the jurisdiction
contending that all of appellees’ claims were barred by sovereign immunity. DPS argued
that appellees’ allegations, although labeled otherwise, amounted to an intentional tort
claim, which is excepted from the Texas Tort Claims Act’s (TTCA) waiver of immunity.
See id. § 101.057(2). Alternatively, DPS argued that it could conclusively establish that
its troopers were entitled to official immunity, thereby cloaking DPS in derivative immunity.
See DeWitt v. Harris County, 904 S.W.2d 650, 653–54 (Tex. 1995) (establishing that a
governmental unit’s immunity is not waived under § 101.021(2) when its liability is based
on an employee’s negligence and the employee is entitled to official immunity).
In support of its assertion of official immunity on behalf of its troopers, DPS
attached a video of the incident taken from the helicopter that also includes audio of the
conversations between the troopers throughout the incident. Additionally, DPS attached
detailed sworn statements from each of its troopers explaining their beliefs about the
contents of the vehicle and the factors they considered in deciding to fire on the vehicle.1
1 These statements were made as part of the Texas Rangers’ investigation of the incident.
3
For example, Lieutenant Prince’s statement provided, in part:
On 10-25-2012, I was operating an American Eurocopter Astar 350 B3 with
U.S. number N329TX, registered to [DPS]. This helicopter is black and
white in color with Texas DPS on the tail section and underneath the
fuselage. The helicopter has a Texas emblem on the left and right side of
the helicopter. On 10-25-2012, I was wearing a BDU flight suit, green in
color with a shoulder holster containing a DPS issued Sig Sauer P239. My
flight suit has a DPS Aircraft Lieutenant Badge. On the right chest . . . area
is a [v]elcro patch with my last name Prince. I also wear a DPS Aircraft
Lieutenant badge on the right side of my belt. In flight, I wear a helmet
issued by [DPS]. The helmet plugs into the helicopter radio and intercom
system that allows a voice activated system in the helicopter for all
crewmembers to communicate.
....
At approximately 2:10 PM, we departed the Edinburg Airport to assist
DPS Criminal Investigations Division Agents in an attempt to serve a felony
warrant. I was pilot, Captain Holland was the co-pilot[,] and Tactical Flight
Officer Trooper Avila was the marksman. The suspect was not located.
We proceeded to the northwestern part of Hidalgo County and the
eastern part of Starr County in support of Contingency Plan Tier 1, which
was in effect due to recent cross[-]border violence. The contingency plan
[went] in[to] effect on Monday and was scheduled to last through Friday.
Northwestern Hidalgo County and eastern Starr County [are] where multiple
pursuits of stolen vehicles and drugs have been seized in recent months,
including the seizure that we assisted with eight hours earlier, on the corner
of FM 2058 and Mile 14. I have personally been involved in multiple
searches of vehicles and suspects in that area. This area had multiple
north/south roads that have access to the Rio Grande River and are used
for smuggling operations. Some of the primary roads are Pipeline Road and
El Pinto Road; both are smuggling corridors from the Sullivan City area.
Captain Holland was seated in the left front seat as co-pilot. His
duties were to operate the camera, aero computer, police radios, and assist
the pilot with his duties. The aero computer is a mapping system normally
operated on a 10-inch monitor and a 12-inch monitor that is used for the
camera. This equipment is located in front of the co-pilot and is operated by
a hand[-]held joystick. The on and off buttons for the co-pilot to operate any
radio system to transmit or receive are located in the middle of the dash
area. There is a two-minute delay once the button is activated for the
recorder to begin recording on an SD card.
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I was seated in the right front seat of the helicopter as pilot of this
flight. My duties were to operate the helicopter in a safe manner, [and] if
emergencies occur[ed], I would handle all issues regarding mechanical
failures. I . . . also control[led] the navigation, communications with air traffic
controllers, and handle[d] all clearances into controlled airspaces. I . . .
assist[ed] with police radio communications if necessary. On the right side
by the door[,] above . . . my right knee[,] is a six-inch monitor that allows me
to see the camera and aero computer; this is also controlled with a switch
depending on what screen I want to see. I have other instruments that [I
am] required to monitor for a safe flight of the helicopter. As the pilot, I am
the pilot in charge of the operation of the aircraft. . . . [A]ll operations and
flights[,] including this one[,] are operated under the term crew resources
management, which means everyone has responsibilities and we assist
each other as crewmembers.
Tactical Flight Officer Trooper Avila was seated in the right rear cabin
of the helicopter. His duties are observer, marksman, assists with police
radios, and can deploy to the ground if necessary. As a marksman, he is
issued a Larue .308, and has received training in Aerial Use of Force. Aerial
Use of Force training consists of discharging firearms from certain heights[,]
normally from 100 to 150 feet[,] [and] [l]earning commands from the pilot
. . . authorizing [the] discharg[e of firearms] from the helicopter. Training for
the marksman is usually conducted every quarter in firing from the
helicopter.
I flew DPS 108 to the intersection of Pipeline Road and Farm to
Market 490 and turned south on Pipeline Road. There was good visibility[,]
and the wind was out of the south. As we traveled south on Pipeline, I could
see a fast[-]moving dust trail east of Pipeline Road around the area of Mile
14 moving east. Simultaneously, maybe seconds later, I heard over the
DPS Base radio frequency of a pursuit traveling east from Pipeline Road. I
heard the unit was in pursuit of a red Ford pickup. I proceeded to fly towards
the fast[-]moving dust cloud[.] I did not see Captain Holland activate the
recording equipment but that is standard procedure for us. I was receiving
updates from the pursuing unit[,] who I identified by his unit number to be a
Texas Parks and Wildlife Game Warden. I don’t remember the exact unit
number, but it was a number consistent with the Game Warden[’]s radio call
numbers. I arrived overhead within minutes . . . and could see the pursuit
proceeding southbound on El Pinto Road. When I arrived overhead, I could
visually see a Texas Game Warden in pursuit of a red Ford F[-]150 pickup.
The game warden’s vehicle was a dark colored pickup with its emergency
lights on; I know he did not have overhead lights on top of the unit. I estimate
he was a quarter of a mile behind the red Ford pickup. I positioned the
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helicopter to the left side and slightly behind the red Ford pickup, which is
the practice of a DPS helicopter in pursuits because it allows view for the
pilot and the marksman, while the co-pilot observes everything on the
monitor. The co-pilot can look around, but normally they remain watching
the monitor and run the camera. The pickup was traveling at a high rate of
speed; I was approximately 400 to 500 feet above the ground. I remember
Captain Holland say that there were bundles in the pickup, or something
like that. As a pilot, I am required to monitor instruments within the cockpit
that maintain the limitations of the helicopter, including air speed, torque,
and the rotor speed. I was also visually looking for obstacles that include
towers and other aircraft. Apart from that, I maintained a visual of the road
ahead. The game warden advised that they were traveling over 80 mile[s]
an hour. I could tell and confirmed that the vehicle was traveling at a high
rate of speed because of the speed that I was traveling at, and I could
visually see that it was traveling at a high rate of speed, especially for the
road conditions. El Pinto Road is a caliche road, dusty, and rough. It is not
a very wide road, but it has enough room for vehicles to meet each other.
The traffic on El Pinto Road during the pursuit was light; however, the
pursuit met three vehicles that needed to take evasive action when they
obviously saw the red Ford pickup. I was looking ahead to observe any
vehicles or large trucks that are common in the area because of the oil and
gas companies. By evasive action, the vehicles pulled over to the side of
the road[.] [O]ne pulled into a drive-way [sic][.] I don’t know if it was going
that way, but it looked like it was taking evasive action to get out of the way
to avoid a head[-]on collision. I remember transmitting what I call a “blind
call,” to U.S. Border Patrol on the La Joya Border Patrol repeater. I
transmitted the location of the pursuit. Captain Holland continued to give
updates on the DPS Base A repeater, which was also being used by the
[g]ame [w]ardens pursuing the red Ford pickup. The reason I was calling
Border Patrol was to prepare them that a pursuit with a drug smuggler was
moving in a southerly direction and would likely return to the Rio Grande
River.
The red Ford pickup was an extended cab and did not look very old.
By seeing the outside mirrors, I knew it was an F-150. It confirmed what the
game warden had stated on the radio that he was pursuing a red Ford F-
150. I could see a tarp in the bed of the pickup that appeared to be covering
something stacked higher towards the cab of the pickup. To me that
indicated that more than likely it was bundles of drugs. In my experience[],
I have seen illegal aliens covered in the bed of pickups; however, they
usually laid flat and in a single file. Tarps or any other covering device[s] are
usually used to conceal any illegal activities from aircraft flying over because
the appearance would resemble the bottom of the pickup bed.
6
I remember seeing the red Ford pickup slow down a little bit, so it
could maneuver around a curve. I dropped a little altitude and did a 360
completely around the truck, so that the driver would know that there was a
police helicopter in the pursuit and so I could see all sides of the pickup and
the cab. I could see a passenger sitting in the right front passenger seat. All
I could tell is that a person was in the passenger front seat. I could not see
any other occupants inside the cab. I tried to see in the backseat area[,] and
I could not see anything inside. I remember that the back seat windows
appeared to be tinted, or very dark, making it difficult to see. All I could see
was the steering wheel[,] and it looked like the driver’s arms were bare. I
could not see the driver’s head or body. I remember I relayed to all of the
crewmembers that I had seen the driver and a passenger in the front seat
of the pickup. The bed had the same appearance on the tarp on the right
side of the pickup and all the way around[;] it all looked the same, and it
looked like it was covering bundles of drugs. In my experience, drivers
involved in pursuits that are smuggling illegal aliens will usually pullover and
flee on foot, and more likely to do that when they see a police helicopter
because they know that trying to outrun a police helicopter is impossible.
As I continued the pursuit, I did a visual scan of the helicopter[’]s
instruments, monitors, the red Ford pickup, any vehicles that may be
approaching from any intersection or the opposite direct of the pursuit, and
the direction the helicopter was traveling. Captain Holland[,] utilizing the
hand control joystick[,] zoomed in through the driver’s window[.] I remember
glancing at the monitor and seeing what appears to be a male’s arm. Around
this time, Captain Holland said that the driver was on a cell phone. When I
heard that, I knew that it was possible . . . that the driver was calling a
“recovery team” to be ready at the Rio Grande River. A “recovery team”
simply means that large groups of people will be waiting at the river to
offload the drugs. These people have been known to be cartel members
and violent. The reason that the Contingency Plan Tier 1 had been activated
. . . was because . . . U.S. Border Patrol Agents south of Sullivan City on
the Rio Grande River had received gunfire. There had also been other
violent confrontations that had recently occurred.
The pursuit continued southbound on El Pinto Road. [I knew] that if
we continue[d] southbound, the pursuit would enter Sullivan City and traffic
would increase dramatically with many cross streets. There is a school zone
on the northside of Sullivan City. I knew that it was about 3:00 PM or a little
after and there would be a lot of school traffic[,] including buses and children
walking home from school. I kn[e]w that the road changes to asphalt and
there are residential subdivisions on both sides of El Pinto Road with
intersecting streets. Seeing the speed that the red Ford pickup was traveling
on a caliche road, I expected that the speeds would increase on the asphalt
road. I remember[ed] I had been on a previous pursuit, it had been raining,
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the roads were wet, and the vehicle had driven against oncoming traffic on
U.S. 83[. The] vehicle eventually turned onto a two[-]way asphalt farm to
market road . . . and drove through a school zone in the community of La
Grulla at a high rate of speed. I remember[ed] it was about 8:45 in the
morning on a school day[,] and I watched the vehicle nearly strike numerous
school buses and passenger vehicles. The vehicle ended up losing control
and striking a house at an intersection. There had been no regard for human
life during his attempt to flee from the police. I remember[ed] I hollered “no,
no” because the vehicle had entered an intersection with a school bus and
vehicles, [and] it was a miracle that a bad fatal accident did not occur. I
retained that video to show people how smugglers fleeing from police on
public roads have no regard for life.
Prior to arriving at 7 Mile Line, the game wardens asked if there were
any units near El Pinto Road and U.S. 83. Captain Holland replied that we
were working on it. That meant that DPS Communications was
broadcasting the pursuit to other units. We started discussing ending the
pursuit, which meant to engage our Ariel Use of Force because of the
dangerous condition this pursuit would create if it reached the community
of Sullivan City.
Aerial Use of Force is protocol used in firing a long gun by a
marksman from a helicopter. To initiate the Aerial Use of Force, the pilot
would give commands that are standard by DPS training in firing a long gun
from a helicopter. There are four basic commands[. The first command is]
“travel,” which means that a marksman would have the weapon on safe, his
hands off the trigger, and the barrel would be pointed down. The marksman
. . . is sitting on the floor with the right rear door open. The next command
is “ready.” This means that the marksman would have extended the rifle to
his shoulder in the ready position. The next command is “cleared hot,” which
means that the marksman could engage or fire. In other words, that is the
only time it is safe to fire from the helicopter. It is the marksman[’s] choice
when to fire or not. “Cease fire” will occur when the pilot observes any
obstacles such as oncoming traffic, houses, buildings, people, or if the
helicopter being flown was required to make any movement that prohibited
the line of fire.
During the pursuit, Trooper Avila was already in the “travel” position,
the right rear door was open[,] and Trooper Avila was sitting on the floor.
Trooper Avila was given the command of “ready” by me as we approached
7 Mile Line Road. The red Ford pickup made a left turn and traveled east
on 7 Mile Line Road and continued at a high rate of speed for a caliche
road. The red Ford pickup passed a slower moving vehicle and continued
eastbound. As the pursuit continued, a truck tractor-trailer was observed
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traveling west and would be meeting the red Ford pickup.
If the red Ford pickup continued east on 7 Mile Line, it would
eventually intersect with Jara China Road[,] also known as FM 2221. This
intersection is a 4-way intersection. Just east of this intersection . . . is a
school, [and] at a high rate of speed, the red Ford pickup would be at the
intersection within minutes. FM 2221 is a farm to market road[;] it is a two-
lane road with shoulders north and south to the intersection of 7 Mile Line
and proceeds east. If the red Ford pickup turned south on Jara China/FM
2221, it would travel to the community of La Joya with a high school located
near FM 2221. FM 2221 would also intersect with U.S. 83. If the red Ford
pickup turned north, it would be a caliche road named Jara Chine, which
would lead back to a rural area and in the general direction of where the
pursuit had started. At this time, we still believed that the red ford pickup
had bundles of narcotics, covered with the tarp, and was more than likely
headed to the Rio Grande River.
The truck tractor semi trailer [sic] that had been seen traveling
westbound towards the red Ford pickup turned north onto a private drive
just prior to meeting with the pickup. Captain Holland said that he did not
think the red Ford pickup was going to stop. I agreed with Captain Holland[.]
I do not remember what Trooper Avila said exactly, but he mentioned a
school ahead. Captain Holland said that the area looked like a decent spot[,]
referring to an area that Aerial Use of Force could be used. Captain Holland
advised to engage the left rear tire. In my opinion, the left rear tire would
allow the driver to maintain better control of the vehicle rather than shooting
a front tire, which would make it much harder to control and steer. This could
induce a rollover.
I lowered altitude between 150 feet and 100 feet from the ground. I
pulled alongside the red Ford pickup, approximately 200 feet away. These
procedures are used during [an] Aerial Use of Force. This particular Aerial
Use of Force was to disable the left rear tire of the red Ford pickup so that
it would not reach the intersection of FM 2221, which was near a school.
The area agreed upon was a rural area with no houses, no cars in the
immediate area, and we obviously did not want to shoot in an area that
could contain cars, houses, and persons in the immediate vicinity. We could
not wait to shoot until we were in a school zone.
I then gave the command “clear hot.” During that time, the helicopter
needed to be flown level, flat, and maintained as smooth as possible. I also
continued to scan forward for any reason to “cease fire.” Trooper Avila’s
assigned .308 is equipped with a suppressor that reduces the sound of
shots fired from the rifle. I heard what sounded like an air rifle[,] probably
9
from Trooper Avila’s mic through the intercom. I was not looking where
Trooper Avila’s shots were hitting, and I have no idea how many shots he
fired. I continued to fly and held the helicopter approximately at a 90-degree
angle. Every time I glanced at the vehicle, everything looked the same[,]
including the tarp in the bed of the pickup. Shortly after that, I called for
“cease fire” because I had seen a building or structure on the northside of
the road a short distance ahead of us. We passed the structure and I called
“clear hot’” as Captain Holland called for the left rear tire. Shortly after,
Trooper Avila fired[.] I don’t know how many times he fired, but I could hear
the same sound as before. I looked at the pickup and observed the left rear
tire going flat as it began to fishtail[.] I remember saying that the pickup was
going to wreck. Captain Holland called for a “cease fire.” Trooper Avila
stopped engaging at that time.
I noticed that the pickup slowed down considerably because I had to
slow down as well and conducted a 360-degree turn around the red Ford
pickup. The pickup continued traveling east and eventually sped up
considerably, not as fast as before but gained control and continued east. I
heard Trooper Avila mention that both rear tires were flat. When the speed
increased, Captain Holland asked for engagement on the front tire. I went
back “clear hot,” at which time Trooper Avila fired one time[.] I remember
hearing the same air rifle sound as before. I actually was looking at the
pickup and saw that the shot had hit at or near the front left tire. The pickup
immediately went to the right side of the road and came to a stop. I saw that
five suspects exited and ran from the passenger side of the red Ford pickup
and fled south into a brushy area. I noticed most of them were wearing dark
clothing except for one that was wearing a bluish colored shirt. I was
extremely surprised to see five people running from the cab of the truck. I
remember saying “f***** I/A’s.” I knew then that it was possibly an illegal
alien load[,] and I became concerned of what was in back of the pickup.
The statements of Trooper Avila and Captain Holland were similarly detailed, and each
statement was consistent with the video of the incident. DPS argued that the troopers
were entitled to official immunity because they acted in good faith when they decided to
fire on the vehicle. 2
2 “The elements of the defense of official immunity are (1) the performance of a discretionary
function (2) in good faith (3) within the scope of the employee’s authority.” Kassen v. Hatley, 887 S.W.2d
4, 9 (Tex. 1994) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)). The parties do
not dispute that the troopers were performing a discretionary function within the scope of their authority.
10
To controvert the troopers’ claims of good faith, appellees offered, among other
evidence, the report of an expert on police pursuits and use-of-force policies who opined
that the troopers had not acted in good faith. The expert was “not aware of a single law
enforcement agency in the United States that has authorized or presently authorizes law
enforcement officers to discharge a firearm from a helicopter in order to disable a vehicle
involved in a pursuit where the only justification is ending the pursuit, as opposed to
circumstances that would authorize the use of deadly force.” After noting how difficult it is
to accurately shoot a moving target from a helicopter, thereby placing innocent
passengers and the surrounding public in danger, the expert concluded that “a reasonably
prudent law enforcement officer, under the same or similar circumstances, could not have
believed that the need to immediately apprehend the driver of the F-150 outweighed the
clear risk of harm to the public created by attempting to disable the tires of that vehicle
with the use of a firearm discharged from the helicopter.”
Appellants also argued in their plea that under United States Supreme Court
precedent, a claim based on violations of federal constitutional rights may only lie against
a “person” and because appellees sued Director McCraw in his official capacity, as
opposed to his individual capacity, appellees had failed to state a cognizable claim. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State
nor its officials acting in their official capacities are ‘persons’ under § 1983.”). As to
appellees’ request for a declaration that DPS’s use-of-force policy violated the Texas
Constitution, appellants argued that the Uniform Declaratory Judgments Act (“UDJA”)
does not waive DPS’s immunity from such a claim and appellees had otherwise failed to
11
establish an underlying waiver. See Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622
(Tex. 2011) (recognizing that the UDJA “waives sovereign immunity in particular cases”
but otherwise it is “merely a procedural device for deciding cases already within a court’s
jurisdiction” (quoting Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex.
2011))).
Finally, appellants argued that the policy in question was amended following the
incident so, to the extent appellees could prove that Director McCraw acted ultra vires,
any such claim was now moot because there was no prospective relief for the trial court
to grant. See City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009) (holding “that
a claimant who successfully proves an ultra vires claim is entitled to prospective injunctive
relief” but is generally not entitled to retrospective money damages). To support this
jurisdictional challenge, appellants attached verified copies of DPS’s former and current
use-of-force policies. The new policy provides that “a firearms discharge from an aircraft
is authorized only when an officer reasonably believes that the suspect has used or is
about to use deadly force by use of a deadly weapon against the air crew, ground officers
or innocent third parties.” The new policy also clarifies that “a suspect’s driving behavior[,]
including aggressive or reckless driving to evade arrest[,] does not constitute use of a
deadly weapon by the suspect.”
The trial court denied the plea, and appellants did not seek interlocutory review of
the trial court’s decision. Over the next three years, appellees prepared for trial by
deposing the three troopers, as well as the two game wardens that initiated the pursuit.
Prior to trial, appellants filed a motion for summary judgment, again challenging the trial
12
court’s jurisdiction. The jurisdictional arguments in the motion mirrored those appellants
previously made in their plea. Appellants included the same evidence they previously
attached to their original plea along with deposition excerpts from the two game wardens
and the three troopers. 3 The trial court denied the motion, and appellants sought
interlocutory review.
II. APPLICABLE LAW
A. Sovereign Immunity
Sovereign immunity protects the State of Texas and its agencies from lawsuits for
money damages and deprives a trial court of subject matter jurisdiction over the plaintiff’s
claims. Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 75 (Tex. 2015) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). DPS, a state
agency, generally enjoys immunity unless the Legislature waives it. See Sawyer Tr., 354
S.W.3d at 388 (citing Miranda, 133 S.W.3d at 224).
The plaintiff has the burden to allege facts affirmatively demonstrating the trial
court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993). To prevail on a claim of immunity, the governmental defendant
“may challenge the pleadings, the existence of jurisdictional facts, or both.” Alamo Heights
Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When a defendant
challenges the existence of jurisdictional facts, the analysis “mirrors that of a traditional
summary judgment.” Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021)
(quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)).
3 Appellants also attached voluntary statements made by the two game wardens; however, these
statements were previously provided by appellees in response to the plea.
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B. Interlocutory Appeals
Section 51.014(a) of the Texas Civil Practice & Remedies Code provides a narrow
set of exceptions to the general rule that only final judgments are appealable, Tex. A &
M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007) (citing Bally Total Fitness
Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)), including the grant or denial of a plea
to the jurisdiction by a governmental unit, TEX. CIV. PRAC. & REM. CODE ANN.
§ 54.014(a)(8), regardless of the procedural vehicle used to make the jurisdictional
challenge. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (concluding that a
motion for summary judgment challenging the trial court’s subject matter jurisdiction is
subsumed under § 54.014(a)(8)).
Although § 54.014(a) does not expressly limit a party to one interlocutory appeal,
the right to successive interlocutory appeals is not without limits. Scripps NP Operating,
LLC v. Carter, 573 S.W.3d 781, 789 (Tex. 2019). To invoke a court of appeals’
interlocutory jurisdiction, the governmental unit must file its notice of appeal within twenty
days after the challenged order is signed. See TEX. R. APP. P. 26.1(b) (establishing a
twenty-day deadline for accelerated appeals); id. R. 28.1(a) (defining accelerated appeals
to include appeals from interlocutory orders).
Consistent with § 54.014(a)’s purpose of promoting judicial economy, when a party
fails to timely appeal the denial of a plea to the jurisdiction, the court of appeals cannot
entertain a second challenge to the trial court’s jurisdiction that merely constitutes a
motion to reconsider the first challenge. City of Houston v. Estate of Jones, 388 S.W.3d
663, 667 (Tex. 2007) (per curiam). “Permitting appeals under circumstances such as
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these would effectively eliminate the requirement that appeals from interlocutory orders
must be filed within twenty days after the challenged order is signed.” Id. (citing TEX. R.
APP. P. 26.1(b), 28.1); see In re K.A.F., 160 S.W.3d 923, 925 (Tex. 2005) (“[T]he language
of rule 26.1(b) is clear and contains no exceptions to the twenty-day deadline.”).
To reset the appellate clock, any subsequent jurisdictional challenge must be “new
and distinct.” City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 301
(Tex. 2017) (per curiam) (citing Estate of Jones, 388 S.W.3d at 667). In making this
determination, a court of appeals should compare both the substance and procedural
nature of the two challenges. Id. at 301. For example, a plea to the jurisdiction based on
the plaintiff’s pleading and a subsequent motion for summary judgment based on the
existence of jurisdictional facts may be sufficiently distinct even though they rely on the
same jurisdictional theories. Id.
III. ANALYSIS
On our own motion, we asked the parties to file supplemental briefs addressing
our jurisdiction over this appeal. See Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812
(Tex. App.—Corpus Christi–Edinburg 2009, pet. denied) (“Appellate courts are obligated
to review sua sponte issues affecting jurisdiction.” (citing M.O. Dental Lab v. Rape, 139
S.W.3d 671, 673 (Tex. 2004))); see also Arriaga v. Arriaga, No. 13-15-00038-CV, 2015
WL 5626189, at *2 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.) (mem. op.).
Appellees acknowledge that the plea and motion “are fundamentally the same” but
nonetheless ask us to address the merits of the appeal out of concerns for judicial
economy. Appellants contend that the motion is “sufficiently distinct” from the plea and
15
generally point to the additional evidence attached to their motion to demonstrate that the
jurisdictional record was more fully developed at the summary judgment stage with
respect to their official immunity argument.
While there was certainly more evidence before the trial court when it denied the
motion, we disagree that any of it constituted “new evidence” material to the trial court’s
jurisdictional analysis. See Smedley, 533 S.W.3d at 302. Appellants have failed to point
us to any specific jurisdictional fact that was established by this additional evidence, as
opposed to the evidence before the trial court when it decided the plea, and we have
found none. Simply put, the deposition transcripts are redundant; each material fact DPS
relied on to support its official immunity argument can be found in either the video, 4 the
detailed statements from the five officers, or both. As such, there was no “discovered
evidence” for the trial court to consider when it denied the motion for summary judgment.
See id.
Likewise, the remainder of the jurisdictional issues in the motion were both
procedurally and substantively identical to the issues previously presented in the plea.
See id. at 301. Appellants merely reasserted their previous jurisdictional arguments based
on the pleadings and the changed policy. 5 See id. Therefore, because the motion for
summary judgment constitutes a motion to reconsider the previously denied plea to the
jurisdiction and appellants filed their notice of appeal more than twenty days after the trial
4 It is noteworthy that there is a video of the incident and that it is consistent with the troopers’
statements. Cf. Scott v. Harris, 550 U.S. 372, 378–81 (2007) (holding that video evidence can conclusively
establish that an officer is entitled to qualified immunity from an excessive force claim).
5 DPS’s primary argument on appeal is that appellees failed to allege a valid waiver under the
TTCA. If correct, then its affirmative defense based on official immunity is unnecessary to the disposition
of the case.
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court denied the plea, we lack jurisdiction over this appeal. See Estate of Jones, 388
S.W.3d at 667; TEX. R. APP. P. 26.1(b), 28.1(a).
Finally, we recognize that our decision is ultimately unsatisfying to both parties,
and we are sympathetic to their pleas for judicial economy. We cannot, however, exercise
jurisdiction where none exists. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing the cause.” (quoting Ex parte
McCardle, 74 U.S. 506, 514 (1868)). 6
IV. CONCLUSION
We dismiss the appeal for want of jurisdiction.
GINA M. BENAVIDES
Justice
Delivered and filed on the
3rd day of February, 2022.
6 Of course, appellants had the opportunity to have these jurisdictional questions answered early
in the litigation and potentially avoid discovery and trial all together. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(b) (providing for the automatic stay of “all other proceedings in the trial court” during the pendency
of an appeal from the denial of a plea to the jurisdiction); City of Houston v. Estate of Jones, 388 S.W.3d
663, 667 (Tex. 2007) (per curiam) (“[T]he main purpose of the interlocutory appeal statute . . . is to increase
efficiency in the judicial process.” (citing Tex. A & M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex.
2007))).
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